Thursday, September 23, 2004
On this day:

Siegelman (Siggleman) Update

This week, prosecutors asked the 11th U.S. Circuit Court of Appeals to remove Judge U.W. Clemon from hearing the trials of former Alabama Governor Don Siegelman, his former Chief of Staff Paul Hamrick, and Tuscaloosa physician Phillip Bobo.

Judge Clemon, a Carter appointee, is the Chief Judge of the U.S. District Court for the Northern District of Alabama. This article in the September 15 edition of the Birmingham News summarizes the prosecutors' beef with Judge Clemon. Among their concerns are that he "was the subject of a previous criminal investigation", "had expressed bias against government investigators and lawyers", and "has financial ties to a lawyer in the case".

The prosecutors are now asking the 11th Circuit to appoint a new judge from out of state to hear the case.

I'm not very familiar with the details of the Siegelman case or the legal issues involved with removing Judge Clemon. I did, however, come across a speech, entitled "Understanding the Brown Decision", that Judge Clemon presented to the Birmingham Civil Rights Institute on April 29 of this year. I transcribed the most illuminating parts, i.e. the parts that seem most "political". (Another exciting evening in Huntsville!)

Discussing the end of Reconstruction:

"In the election of 1876, where there were some questions about some votes
from Florida, a deal was struck. And, the man who got the second highest
number of votes made a deal whereby he became President of the United States in
return for his promise to remove federal troops.

Now, you know they say history repeats itself, and we've seen it in the
last four years, when the man who came in second in terms of the vote became
President of the United States."

Here, Clemon is alluding to the 1876 presidential election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. In that election, Tilden won a majority of the popular vote. However, Hayes ended up winning a majority in the Electoral College, but not without dispute. There had been contested electoral votes in Louisiana, Florida, and South Carolina. Discussions of that race can be found on the following sites:

"School desegregation lawsuits are still on the dockets of federal courts. But as Professor Fair has pointed out, that doesn't mean very much because, among other things, the man who sits as the Chief Justice of the United States Supreme Court today - in 1954, was a law clerk to Mr. Justice Jackson, and William Rehnquist, the law clerk, wrote a famous memo to Mr. Justice Jackson in 1954 urging that separate but equal should continue to be the law. He didn't convince Mr. Justice Jackson of that. But, oh, since he has been Chief Justice of the Supreme Court, he has worked to see that that would come about. And so, we've had a very significant retrenchment on the whole promise of Brown by the United States Supreme Court in the decisions that Professor Fair mentioned. The problem of racially segregated schools, the old problem, is the same problem, in new (unintelligible...battles?)."

Rehnquist indeed wrote a memo to Justice Jackson, in 1952, when Brown vs. Board of Education was pending, concluding that "separate but equal" as decided by Plessy vs. Ferguson, was the correct constitutional standard. According to this site:

At his (Senate confirmation) hearings, Rehnquist testified that the memo did not reflect his views, but the views of Justice Jackson, to be used at the conference of the Justices at which Brown would be discussed. His testimony was disputed by others (but supported privately by Justice William O. Douglas, the only member of the Court in 1971 who was on the Court in 1952), but the flap subsided, and Rehnquist was confirmed by a vote of 68-26

Rehnquist's original memo, entitled "A Random Thought On the Segregation Cases", can be found here.

Both of these excerpts from Clemon's speech seem to me to be cheap shots. First, by drawing a parallel between the 2000 election and the "stolen" election of 1876, but leaving out key details. Second, by taking a memo written by a twenty-something year-old law clerk named William H. Rehnquist and implying that today, as Chief Justice, he would say the same things the same way. All that without even a cursory discussion of the merits of the memo itself.